Holidays not paid for overtime

I work on call emergency nightshift, basic hours of 35 a week plus whatever calls I go out to overnight. Due to staff shortages since I started I have worked practically every week instead of the week on/off I was employed to do. The problem is my holiday entitlement. I know how many weeks we are entitled to, but because of the varying hours the holidays are worked out when we take them over our last 12 weeks pay. However, I have just taken a week’s holiday and not been paid any holiday pay for it again. This is because it fell on my week off and they don’t have to pay me any holiday pay when I am not meant to be at work. This can’t be right. This happened just before the end of the holiday year in April too and, as I had been refused my holiday requests due to staff shortage, I lost out on three weeks holidays that I had left which is a lot of holiday and pay to lose out on. Do they have to pay me holiday pay if I am on holiday when my week off is due? They say not, but they have done previously albeit it was after I was assaulted and injured by a patient, but any further requests have been point blank refused. Can you advise me on my rights in this matter as since I started I have lost out on over five weeks pay due to holidays coinciding with my off shifts.

It is clear that you are a full-time employee regularly working 35 hours per week plus the overnight calls even though you are supposed to be working one week on and one week off.

Under the Working Time Regulations, it is unlawful for you to regularly work more than 48 hours per week unless you have opted out of these rights with your employer. This is measured over a 17-week reference period.

In law you are also entitled to a minimum of 5.6 weeks paid annual leave which equates to 28 days for a five day working week. This includes and covers eight public and bank holidays.

You will need to check with your employer whether there is a written annual leave policy. There may also be an entitlement to additional contractual annual leave.

Your entitlement to annual leave accrues from the commencement of your employment and you are entitled to take your annual leave at a time that is convenient to your employer and upon reasonable notice.

Part-time employees are also entitled to the same minimum level of holiday pay but on a pro-rata basis.

In the event that you take annual leave your holiday pay will be calculated to be your normal weekly wage taking into account any guaranteed and non-guaranteed overtime and commission payments.

If your pay varies from week-to-week because of varying shift patterns or if there are periods when you have had time off because of shift patterns then your holiday pay should be calculated over the previous 12 weeks.

If your hours of work are more irregular then it might be easier to calculate the holiday pay entitlement on the actual hours that are worked in any week. This is based on a figure of 12.07% being the equivalent of the 5.6 weeks holiday pay element of hours worked. Simply multiply 12.07% by the number of hours worked per week.

You mention that you have not been paid for any holidays that you have taken, which in itself is unlawful. I was wondering whether you have informed your employer that you were taking these weeks as annual leave, and if not this could explain their failure to pay you?

I would therefore recommend bringing this to the attention of your employer and asking them to pay you your holiday pay which is a lawful requirement.

If your employer fails to pay you then I would raise an informal or a formal grievance and exhaust this process including any appeal.

If your employer refuses to pay your holiday pay then you can ultimately issue proceedings in the employment tribunal under section 13 of the Employment Rights Act 1996 which relates to an unlawful deduction of salary. Holiday pay is defined as pay.

I also note that the holiday year expired in April and there is a limitation period of three months to issue proceedings from the date that the last payment was due and you perhaps are close to the end of the limitation period.

There is also a mandatory legal requirement to attempt early conciliation with ACAS before you are able to issue employment tribunal proceedings and you need to do this as soon as possible which will extend the limitation period by about a month. There is also an issue fee of £160 for this type of claim and a further hearing fee. Your grievance and early conciliation with ACAS can run in tandem.

I also note that you were assaulted and injured by a patient, but you fail to say whether you took time off sick to recover. If you were absent for four days or more then you would have needed to obtain a doctor’s fit note which would have entitled you to statutory sick pay and not holiday pay, unless you agreed to take this period as annual leave at your usual rate of pay.

In summary it is unlawful for your employer to refuse to pay your holiday pay. You need to discuss this with your employer by raising an informal or a formal grievance. If this fails to resolve the problem then you must immediately involve ACAS to attempt early conciliation before finally issuing proceedings in the employment tribunal as a last resort – assuming that the limitation period has not expired.